Minister Barroso says the malfunction of the Brazilian IP System falls upon the user
At the opening of the third day of ABPI’s Congress, Minister Luís Roberto Barroso, of the Federal Supreme Court (STF), said that, by deciding on the unconstitutionality of the Sole paragraph of Article 40 of the Brazilian Industrial Property Law (Law 9,279/96), in the recent judgment of ADI 5529, the STF transferred to the patent applicant the burden of the inefficiency of the Brazilian intellectual property system. “This is a very clear administrative malfunction that should be addressed and not punish the patent applicant”, he said. In the judgment of the action, the minister voted for the constitutionality of the provision, which provides for the extension of the patent’s validity period due to delays by the BPTO in the analysis of the examinations.
Barroso, who is the current president of the TSE (Superior Electoral Court), participated in the Plenary “ADI (Direct Action of Unconstitutionality) 5529: Impacts of the STF Decision”, which also had lawyers Luciano Timm, and Sérgio Olivares, from Mexico, as debaters, and Luiz Henrique do Amaral, the president of AIPPI (International Association for the Protection of Intellectual Property) as the moderator. The minister expressed concern about the possible negative impacts of the STF decision. “There is a certain fear that this could reduce investment in general in Brazil because of the suspicion that there is an anti-entrepreneurial, anti-business feeling here”, he said. “For the future, the impact will be smaller, since the BPTO has already reduced the time for exams to seven years and nine months, although it is still a very bad number”, he added.
In his speech, the minister considered that in Brazil there is a certain “judicialization of life”, in which, in many cases, the Federal Supreme Court has the first word, without the maturing of issues in previous instances. “The judiciary can have the last word, but not necessarily”, he stated. In the judgment of ADI 5529, Barroso defended a “certain constitutional modesty”, considering that the STF was not the appropriate body to assess the impact on the system as a whole that such a decision could produce. For the minister, the matter in question belongs to another competence. “Basically, we are facing more of an administrative issue than a jurisdictional one. The solution here has a clear diagnosis: we have an unequipped autarchy, with more than half of its positions vacant. There is no legal solution that solves it, it is necessary to make the BPTO work”.
For lawyer Luciano Timm, the STF decision will not result in health solutions development for the treatment of Covid 19 by Brazilian companies, as one might suppose. He also does not believe that compulsory licensing is an alternative to bring vaccines and medicines at affordable prices to the population. “I don’t believe we will develop innovations with these measures”, he said. “We send a bad message to investors. It’s not the end of the world, but I don’t see elements to expect that this will prioritize the public interest”.
In his presentation, lawyer Olivares addressed aspects of the new Mexican industrial property legislation, which introduced adjustments to patent terms in the Mexican patent system through supplementary certificates to compensate patent holders for delays directly attributable to the Mexican Institute of Industrial Property. According to the new law, a certificate will be made available for a patent whose processing time from the application submission to the granting is more than five years.
For those who want to review this and all the other plenary sessions and presentations of the congress, access the program schedule on the website of ABPI’s 41st International Congress.